205 C hapter 13 DIRECTORS AT WORK A n increasingly common lament sung across corporate America is that directors are overworked. They are asked to do too much, must satisfy too many competing interests, and so on. There is a simple and sufficient solution to this condition. Directors should be asked to do a short list of five things and do them well. The key jobs entrusted to any board of directors are as follows: • Selecting an effective chief executive • Setting executive compensation • Evaluating takeovers • Allocating capital • Promoting integrity in financial reporting Effective performance of these jobs ultimately depends not so much on governance mechanisms as on board trustworthiness. An investor should pay attention to how well directors perform these tasks as a way to gauge where along the continuum from owner orientation to manager orientation they sit. A management-oriented position is suggested by fat executive paychecks for a dismal perfor- mance. A stakeholder-oriented position reveals itself in poor returns on invested capital that keep unproductive plants operating in a bow to labor pressure. An owner orientation is reflected by good perfor- mance, reasonable executive pay, and the cultivation of productive workers in productive jobs. As a management orientation example, ask yourself whose inter- ests were really going to be served by AMP’s resistance to Allied- Signal’s bid discussed in Chapter 11? AMP’s shareholders objected, and so they obviously thought their interests were being disserved, and AMP’s plan to boost the company’s profitability included cutting Copyright 2001 The McGraw-Hill Companies, Inc. Click Here for Terms of Use 206 In Managers We Trust the work force by about 9%, or 4200 jobs, and closing ten factories. 1 AMP’s board ultimately may have served the corporation’s interests in concluding a deal with a friendly partner, but AMP’s CEO and management undoubtedly pressured the board to resist what by all accounts looked good for shareholders in favor of something that looked bad for the workers. The best way to tell where a company sits is to investigate the way its directors tackle their key jobs. Focus on those jobs and decide which boards do them well. HAIL TO THE CHIEF The CEO sets the tone at the top. The CEO’s historical performance on matters such as compensation, acquisitions, and capital alloca- tion generally is the key question an investor should ask when judg- ing a CEO and deciding whether to entrust wealth to his or her management. Special attention must be paid to selecting a CEO because of his or her unique role in the organization. Warren Buffett notes that standards for measuring a CEO’s per- formance are either inadequate or easy to manipulate, and so a CEO’s performance is harder to measure than that of most workers. The CEO has no senior other than in theory the company’s board of directors. That board is often handicapped in its performance review, however, because of a lack of measurement standards and because as meetings come and go, the relationship between the CEO and the directors increasingly becomes congenial rather than super- visory. Maintaining that supervisory attitude is critical. The board’s role in reviewing the CEO’s performance is most acute precisely where it can be most easily impaired: dealing with a mediocre manager. It is easy for a board to get rid of a terrible manager; the hard case is a so-so one. Recruiting the top talent and a roster of succession candidates is a critical board function. Too often the importance of this role is overlooked, as occurs when a board simply replaces an outgoing CEO with the number two fellow at the company (which happens about two-thirds of the time). This means that many boards fail to evaluate changing organizational needs and variations in the personal talents of the two at the top. 2 Abdication of a board’s responsibility for CEO selection is most clear when a board simply allows an incumbent CEO to handpick Directors at Work 207 the successor. There is little reason to believe that even the most outstanding CEO is as good as a top board at picking a new CEO. The result is too often the need to oust the new CEO pretty early in his or her tenure. Still, boards must evaluate a CEO’s performance regularly and out of the CEO’s presence, and evaluating that performance is hard- er than it seems. Both short-term results and potential long-term results must be assessed. If only short-term results mattered, many managerial decisions would be much easier, particularly those relat- ing to businesses whose economic characteristics have eroded. Recall again Al Dunlap’s aggressive and doomed plan to turn around the ailing Sunbeam. The huge accounting scandal that fol- lowed in its wake also suggests its inherent stupidity. Once it was clear that Dunlap was a terrible manager, it was easy for the Sun- beam board to throw him out, but before the fallout he looked at worst mediocre and therefore harder to disagree with. PAY Plenty of evidence shows that the total level of executive compen- sation in the United States is positively correlated with the level of corporate performance. Some evidence even shows a positive cor- relation between performance and the portion of total compensation paid in stock. 3 Even so, it is also obvious that some executives are paid sub- stantially more than they should be in light of their performance. Accordingly, investors should pay close attention to potentially pi- ratical executive compensation. Compensation Levels This is not to say that it is desirable to have governance rules that limit top executive compensation to some ratio of the pay of the least compensated employee at a company. Indeed, Ben & Jerry’s tried this during its early years of business life, capping its founder’s and chief’s compensation at seven times that of the lowest-paid worker. But once the company outgrew its founder’s managerial skills, it was forced to go on the market to recruit top talent, and that required a pay package way higher than that cap. 4 208 In Managers We Trust If the early Ben & Jerry’s policy showed bad judgment, some of the pay packages seen lately show something far worse. The CEO of Network Associates (owner of the McAfee computer antivirus pro- grams), for example, got about $7 million in shares of McAfee.com just ahead of its IPO even though the business of Network Associ- ates performed poorly and McAfee itself was losing money. 5 A key issue in the merger between Chrysler and Daimler-Benz was the enormous difference between the two companies both in the level of executive compensation and in the compensation ratios of the highest-paid and lowest-paid employees. In 1997, for example, Robert Eaton, Chrysler’s chairman of the board, received total com- pensation of about $10 million, over 200 times the average worker’s pay and nearly as much as the total compensation paid to all ten members of Daimler-Benz’s management board combined. Daimler- Benz’s chairman, Jurgen Schrempp, was paid about one-tenth as much as Eaton, making his compensation approximately twenty times that of the average Daimler-Benz worker. Thus, a major question in the merger was the form that the combined entity’s compensation structure should take. Schrempp pointed out that the existing pay differences reflected cultural dif- ferences, particularly the somewhat more egalitarian corporate cul- ture in Germany, as demonstrated by labor representation on super- visory boards. He also predicted that the U.S. model would prove to be the proper form for DaimlerChrysler and other transnational companies, except that “the only way to make big pay packets so- cially acceptable is by linking them closely to performance.” 6 Schrempp’s statement mirrors the rhetoric of corporate America. Given that the other differences in corporate governance between Germany and the United States are more nuanced and subtle than is generally understood, you have to wonder if this was Schrempp’s main point when he said that DaimlerChrysler created “the first German company with a North American culture.” Any doubt was cleared up when Schrempp subsequently proselytized for American- style executive options at DaimlerChrysler’s April 2000 shareholder meeting, something his German shareholders sensibly resisted. Stock Options A decade ago corporate governance mavens urged boards to pay managers more in stock than in cash to promote an alignment of interests between managers and shareholders. The response was tre- Directors at Work 209 mendous, a bit like the apocryphal story of Lady Astor’s famous quip on the Titanic: “I asked for ice, but this is ridiculous.” What the governance gurus got was a proliferation of payment not in stock that was the functional equivalent of the forgone cash but instead stock options with a value vastly exceeding what the cash payment could reasonably have been. The explosion of option-based compensation remains one of the most controversial subjects in cor- porate governance history. Some say that the widespread use of stock options in the United States simply reflects the priority given to this alignment goal in the United States and that its relative infrequency in Europe and else- where reflects the absence or irrelevance of this goal. However, the talk of alignment is more myth than truth and too often represents an attempt to sanitize management compensation packages that con- flict with shareholder interests (not to mention labor interests). Stock Option Myths No evidence indicates that the prevailing structure of executive com- pensation in the United States comes anywhere close to aligning manager and shareholder interests. On the contrary, a great deal of evidence demonstrates that the compensation structure is random. Many corporations give their managers stock options which in- crease in value simply through earnings retention, rather than be- cause of improved performance resulting from superior deployment of capital. By retaining and reinvesting net income, managers can report annual earnings increases without doing anything to improve real returns on capital. Buffett makes the point: “You can get the same result personally while operating from your rocking chair. Just quadruple the capital you commit to a savings account and you will quadruple your earn- ings. You would hardly expect hosannas for that particular accom- plishment.” 7 When that happens, stock options rob the corporation and its shareholders of wealth and allocate the booty to the optionees. In- deed, once granted, stock options are often irrevocable and uncon- ditional and benefit the grantees without regard to individual per- formance—a form of instant robbery. Even if stock options encourage optionees to think as share- holders would, optionees are not exposed to the same downside risks as shareholders are. If economic performance improves and the 210 In Managers We Trust stock price rises above the exercise price, the optionees will exercise the option and share in the increase with shareholders. But if eco- nomic performance is unfavorable and the stock price remains below the exercise price, optionees simply will not exercise the option. Shareholders suffer from the corporation’s unfavorable performance, but an option holder does not. These awards also exacerbate the misalignment of interests be- tween corporate option holders (usually senior executives) and other workers. The awards dramatically increase the compensation differ- ential between highly paid executives and ordinary laborers, a ratio which is significantly higher in the United States than it is in Europe and elsewhere. Accordingly, when stock options are used, they should be spread throughout the employee base—as GE has done— rather than limited to the top dogs. Stock Option Costs The direct cost to shareholders of stock option compensation is the dilution of their ownership interest. A common managerial response to the dilution is to buy back outstanding shares. The trouble with that solution is that it devours corporate funds that might be more profitably deployed. Shocking indirect costs are accounting rules that fail to require employee stock options to be recorded as an expense on the income statement. 8 This translates into earnings per share figures that over- state actual earnings for companies with executive stock options out- standing. Even the diluted earnings per share figure does not reflect these costs. Accordingly, you must adjust earnings figures for the cost of op- tions. Doing this is not easy, however, for not all information is nec- essarily found in the financial statements. You need to examine the footnotes for something called overhang, which is the percentage of the company that outstanding stock options would represent if they were exercised. The average percentage has mushroomed from under 10% a few years ago to nearly 15% now. Still, the actual cost of options is not presented directly, though there is some footnote disclosure about this. The real cost equals the price at the time of exercise minus the amount the executive pays (the exercise price). This is the truest measure of cost because the company could have generated that much by selling the optioned shares to others at the prevalent price instead of at the option price. The cost of executive stock options is substantial, averaging Directors at Work 211 about 5% of annual earnings among S&P 500 companies and in some cases amounting to half of reported earnings, including at Ya- hoo!, Polaroid, and Palm. 9 In less dramatic but still striking exam- ples, if stock options were recorded as a cost, the 1999 earnings of some major companies would be slashed: Cisco, 24%; Microsoft, 12%; IBM, 8%; and Oracle, 16%. 10 These cost effects extend for many years, depending on the life of the options. At many companies, options have a life of five years. Increasingly, companies extend their lives to as long as 10 and 15 years. Accountability Legal rules are ill equipped to police executive compensation. The general stance of U.S. courts is to evaluate compensation issues, if at all, under a waste standard. This standard rarely upsets corporate decisions. Waste requires pretty much the irrational trashing of cor- porate assets in ways akin to dumping truckloads of cash into the Hudson River. In the case of executive compensation, U.S. courts are quite deferential to management indeed. As for securities disclosure laws, the SEC requires substantial and focused disclosure of top executive compensation in compara- tive performance charts. Nevertheless, corporations continue to structure executive compensation packages so that they don’t show up in the bottom-line numbers. For example, after accounting stan- dard setters ruled that a reduction in the exercise price of a previ- ously issued option had to be recorded as an expense on the income statement, many companies chose instead to extend the life of the option. Without effective legal or accounting regulations, the chief job of policing executive compensation lies with the corporate board. Board members must insist that executive compensation peg indi- vidual contributions to corporate performance. Measuring executive performance by business profitability is the most definitive yardstick with regard to shareholder as well as labor interests. When measur- ing performance, companies should reduce earnings by the capital employed in the relevant business or by the earnings the firm retains. Caveat While Warren Buffett tends to share these criticisms of stock option compensation packages, he is careful to record the following caveat: 212 In Managers We Trust Some managers whom I admire enormously—and whose oper- ating records are far better than mine—disagree with me re- garding fixed-price options. They have built corporate cultures that work, and fixed-price options have been a tool that helped them. By their leadership and example, and by the use of options as incentives, these managers have taught their colleagues to think like owners. Such a culture is rare and when it exists should perhaps be left intact—despite inefficiencies and ineq- uities that may infest the option program. 11 Investors should look for boards that take the lead in policing stock option compensation, but beware—they are scarce. DEALS Just as the disease of random executive compensation must be avoided by intelligent investors and trustworthy boards, so must the costs of imprudent acquisition policies and defensive tactics. Offensive Offensive acquisition strategies require careful board attention be- cause of the strong possibility that even outstanding senior managers possess individual interests that conflict with owner interests. Ac- quisitions give CEOs enormous psychological benefits by expanding their dominion and generating more action. Acquisitions driven by these sorts of impulses come at shareholder expense. Most acquisitions do not achieve gains in business value. A 1999 study by the global accounting firm KPMG concluded that “83% of mergers [during the period 1996–1998, when trillions had been paid in merger deals] failed to produce any benefits for shareholders and, even more alarming, over half actually destroyed value.” That study also found, based on interviews with managers involved in mergers, that less than half did any postdeal review to test whether value was added or subtracted! 12 A governance problem exists because most acquisition attempts do not come to the board for discussion until the process is sub- stantially under way and until after the CEO has invested substantial personal capital in them. Rejecting an acquisition proposal after the CEO invests substantial personal capital is often considered a rejec- tion of the CEO who presented the proposal to the board. This prob- lem is especially acute among CEOs who resent hearing bad news. Directors at Work 213 Cascades of stupid acquisitions come pouring in, often drowning the board’s better judgment. These timing problems make it difficult to design a governance mechanism that would alleviate this pressure on the board. The ego problems are just as intractable, as another Buffettism suggests: “While deals often fail in practice, they never fail in projections—if the CEO is visibly panting over a prospective acquisition, subordi- nates and consultants will supply the requisite projections to ration- alize any price.” 13 Mattel, for example, is a worldwide leader in the design, man- ufacture, and distribution of toys. In May 1999 it bought the Learn- ing Company, a producer of educational software for personal com- puters. Mattel paid for the $3.8 billion purchase by using Mattel stock at a time when the stock was trading at about $26 a share (down already from an average trading price over the prior year of around $40). Mattel’s chair, Jill Barad, announced in July 1999 that the Learning Company was contributing to Mattel’s overall opera- tions with “exceptionally strong growth” in revenues and margins and said this “was one of the reasons this merger made so much sense for Mattel.” 14 Barad did not say how the computer software business related to Mattel’s traditional products, such as Barbie dolls, Fisher-Price toys, and Hot Wheels. But just three months later, in October 1999, Mattel announced that the Learning Company division’s rev- enues had declined and it had lost money because of, among other things, higher than expected product returns from customers and write-offs of bad debts. 15 Instead of earning $50 million that quar- ter as Barad estimated, it lost over $100 million, and Mattel’s stock plummeted to about $11 a share. Many analysts, at least in hind- sight, reported that these problems at the Learning Company were not new and should have been uncovered and discounted before Mattel bought it. These analysts also thought that Mattel fit the description of a company about to make a bad acquisition. If sales growth in your core business is declining and you can’t seem to do anything about it through product, marketing, or distribution improvements, one impulse is to buy yourself some growth through an acquisition. Mat- tel’s sales growth, incidentally, was declining in its core products right before the Learning Company acquisition. So too, for that mat- ter, was the Learning Company’s. (Mattel’s board ousted Barad in early 2000, awarding her an exorbitant severance package, and re- placed her with Kraft Foods CEO Robert Eckert.) 214 In Managers We Trust Contrast Mattel’s story with the policies of Disney. Disney’s philosophy is to make only acquisitions that are in a related or complementary field that current management understands fully, and at a fair price. In its most important acquisition, Capital Cities ABC fit the bill. Disney’s long-time chairman, Michael Eisner, had worked at ABC from 1966 through 1976 and had seen it grow from a network critics called the “fourth of three” to first place in every category. After Capital Cities bought ABC in 1986, Tom Murphy and Dan Burke catapulted it to yet new heights, and the combination with Disney made sense. Walt Disney himself liked ABC as well. After all, ABC helped finance Disneyland in 1955, and Walt brought ABC to Hollywood when he began what is now The Wonderful World of Disney. Disney’s Internet business benefited enormously from the addition of ABC.com, ESPN.com, and a host of cable assets that enable important growth opportunities. Defensive Takeover defenses are the flip side of offensive acquisition strategies. Antitakeover devices such as the poison pill protect management’s decision making by discouraging attempts to acquire the corporation or remove incumbent directors (as AMP’s defense against Allied- Signal attests). If some or a majority of stockholders deem a takeover attempt to be in the corporation’s and their best interest and the potential acquirer is willing to pay a premium over the prevailing market price or intrinsic value of the corporation’s common stock, antitakeover devices work against shareholders. Disney’s acquisition philosophy is also illustrative on this side of the table. Corporate raiders of the early 1980s sought to acquire Disney and bust it up but Roy Disney would not let that happen. He preserved Disney as a great American institution and facilitated a recommitment to the fundamental businesses that had made it great. Disney animation, for example, with Roy at the helm, rein- vented itself and surged with a long series of critically and popularly acclaimed films. In doing so, Disney adopted the best takeover de- fense strategy there is: an extraordinary business. (More on Disney in the next chapter.) To be sure, situations exist in which hostile offers are inadequate and not in the interests of the corporation or any of its constituents. Yet incumbent managers facing unwanted takeover talks naturally [...]... financial statements and the underlying day -to- day records and periodic summaries on which they are based The audit is a monitoring mechanism that lends credibility to the financial statements For that credibility to be meaningful, however, the auditor must work closely with members of the board of directors, and both the auditor and those directors must act with diligence, independence, and awareness Several... that bottles and distributes Coca-Cola products A variety of means were used to fortify the system, from encouraging bottlers to reinvest to investing equity directly and supplying managerial expertise Through these practices, Coke expanded around the globe to nearly two-hundred countries to create billions of new potential customers Between 1 980 and 1994 the number of potential Coke customers more... volunteer work, and the company participates in outreach programs GE engages its various constituents as part of its daily life, learning how better to serve customers as well as coventurers, distributors, and others GE is happy to learn from its own but equally happy to adapt ideas created by others, including suppliers and competitors Boundaries retard development, stifle creativity, and complicate... only meritorious argument favoring stock splits is that they reduce the per share price of stock and thus enable a wider investor group to participate If no U.S company in history had ever split its stock, the per share price of some of the best companies would be in the tens of thousands of dollars (as is the case at Berkshire Hathaway, for example) That price level is prohibitive for many investors This... spread like wildfire” throughout GE to generate substantial returns on the billion-plus dollars invested in it For example, Six Sigma contributed over $300 million to GE’s operating income in 1997, $750 million in 19 98, and about $2 billion in 1999, and the impact continues Profit margins at GE historically ran around 10%, but with Six Sigma they were boosted to 15% to 17% and higher All this leads to what... really matter and show up.” Paralleling the situation at Welch’s GE, the big meetings at Disney are the “synergy meetings” that bring together the heads and top managers of each division to share ideas so that the best of one division can be transplanted to the others Motivated by Disney’s general devotion to synergy and all the participants’ desire to impress their colleagues “with the breadth and creativity... dividend to free 2 38 In Managers We Trust up cash for reinvestment at low cost It reinvested those and other funds to expand its global bottling network to erect an extensive and efficient business system All this Goizueta explained with great clarity to his fellow shareholders Infrastructure Fortification Part of that investment helped finance improvements in its bottlers’ processing and distribution systems... standard, “a reasonable investor, knowing all relevant facts and circumstances, would perceive an auditor as having neither mutual nor conflicting interests with its audit client and as exercising objective and impartial judgment on all issues brought to the auditor’s attention.” Only then are financial statements worth analyzing Auditing is an area over which the board of directors must take control and. .. pervasive temptation to wish, hope, and temporize Equally important, leaders must encourage their troops to do the same To ignite a mammoth company like GE with the energy of a small company requires “passion, hunger, appetite for change, customer focus, and, above all, the speed to see reality more clearly and to act on it faster.” Doing all this, Welch concludes, requires leaders to foster a culture... Apply that standard in evaluating whether a CEO deserves your trust Everyone knows that Warren Buffett is an enormously successful investor, but not everyone is aware that he is also an enormously successful and owner-oriented manager On this score, Buffett is to business management what Ted Williams was to baseball Both are in classes by themselves, Ted constantly hitting near 400 and Warren constantly . The only meritorious argument favoring stock splits is that they reduce the per share price of stock and thus enable a wider investor group to participate trustworthiness. An investor should pay attention to how well directors perform these tasks as a way to gauge where along the continuum from owner orientation to manager